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The European court’s hidden but hopeful message on the freedom to marry

"Last week, the European court of human rights ruled unanimously that there was no obligation on states to recognize the freedom to marry.
At least, not yet. Because hidden within the ruling are two significant
findings that make it almost certain that one day the court will rule
in favour of a right to have same-sex relationships – including
marriages – recognized in law. The case is also notable for a bizarre
intervention by the UK government, arguing against a right – to
recognition of civil partnerships – that it had itself introduced at
home.

"Two Austrians, a Mr Schalk and a Mr Kopf, argued that the
right to marry, set out in the European convention on human rights,
requires states to recognize marriage equality. The court rejected that
argument unanimously, stating instead that the right of men and women
to marry is subject to national laws. The court relied on the fact that
only six of the 47 European states recognize the freedom to marry (in
fact, seven countries now do, with Iceland the latest). In this
approach the court showed once more that on issues it calls 'morality'
it normally follows states, rather than leads them, an approach which
those who accuse the court of 'interfering' too much would do well to
consider.

"However, the court did state clearly that the right to
marry does not apply only to persons of the opposite sex. The EU
charter of fundamental rights – accepted by all EU states — guarantees
the right to marry, deliberately excluding any reference to gender.
This should mean that in those countries that grant access to marriage
for all couples, any distinction between same-sex and heterosexual
marriage would be arguable discrimination under the convention.

"But
for now the court has held back, hinting strongly that it will
recognize the right to marriage equality, as a right under the
convention, when a "European consensus" exists – ie, when enough states
have done so.

"But Schalk and Kopf made a further argument – one
that divided the court by four votes to three. They argued they had
been discriminated against by Austria in their right to family life,
being denied the right to any legal recognition of their relationship.
In January this year Austria introduced civil partnerships (well after
the case was first brought) and as a result, the majority of the court
said that in fact they were not suffering discrimination, as they did
now have the right to a civil partnership. Nor had the two men shown
that the differences between a civil partnership and marriage in
Austria (which are mainly about parental rights) would affect them.

"But
the court did for the first time recognize that a same-sex couple in a
stable relationship constitutes 'family life' in the same way that a
heterosexual couple does. The three dissenting judges argued strongly
that there was discrimination, in that Austria gave no legal
recognition to same-sex relationships before 2010 and gave no arguments
about why it would treat people differently on the grounds of their
sexual orientation.

"All of the other 46 states of the Council of
Europe could have chosen to intervene in this case. Only one did – the
United Kingdom. The court's judgment summarizes the UK's arguments as
being strongly against any right to the freedom to marry or to recognition
of same-sex partnerships. This intervention is very peculiar, to say
the least, as it was done under the previous Labour government, which
was very proud of introducing legal recognition of civil partnerships
in Britain. In fact, after this intervention was publicized in the
Guardian in 2008
and Anthony Lester raised the issue in the Lords, the government said
it was amending its arguments, but it does not appear to have done so
with any major change of approach.

"In fact, when it comes to
intervening at the European court of human rights to weaken human
rights protection, the UK has form. In a 2008 case against Italy it was
again the sole intervener, this time trying to water down the absolute
ban on deportations where there is a real risk of torture. Its
arguments in that case were resoundingly rejected by the court, and its
intervention was later criticised by a parliamentary committee.

"Although
the implications of this case for marriage equality are disappointing to
Schalk and Kopf, they have achieved a clear precedent for the future.
In recognizing that the right to family life and the right to marry are
applicable to same-sex relationships, the court has effectively said it
will declare it a duty for states to recognize such rights, once enough
states have done so."